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Thursday, July 31, 2014

Corporate Governance

Much of the liberal dismay over Hobby Lobby (and before that the campaign finance cases) has centered around the question of "corporate personhood" -- whether a company, like an individual, has the various rights protected by the Constitution. I've always thought this was the wrong question. I think everyone agrees that corporations should not have the right to vote, on the one hand. And on the other hand, I think everyone does agree they have the right to the freedom of the press -- shutting down the New York Times and justifying it because "it's a corporation" wouldn't fly with anyone.

So really the question isn't "do corporations have 'individual' rights", it's "what rights do corporations have." But even that, I think, doesn't get at the dismay so many felt over Hobby Lobby. I don't think the problem is necessarily even that Hobby Lobby asserted a freedom of religion claim. There are corporate-religion claims that I can imagine many people finding plausible and worth endorsing -- a kosher butcher suing over state restrictions on meat slaughtering. Another would be the efforts of Jewish-owned businesses to be exempt from Sunday closing laws (efforts that were almost entirely unsuccessful, at least in the courts).

The problem is that Hobby Lobby's decision feels less like "respecting an individual's choice of conscience" and more like "government imposing its religious beliefs onto me." And here's the important point: from the vantage point of its employees, Hobby Lobby bears a much closer resemblance to government than to a fellow citizen.

As a private citizen I might be able to request a religious exemption to, say, wear a beard at work or have Saturdays instead of Sundays off. This has at best an incidental effect on people-not-me. By contrast, if I assert that an entire highway needs to be moved to accommodate my religious sensibility, affecting thousands of other people, I'm going to encounter far more skepticism. We tolerate religious accommodations where they are primarily private matters that have an at most incidental impact on other members of the polity (which I support -- why not?). But Hobby Lobby's decision is hardly private; the primary effect of its decision is felt by its workers. In its ability to seriously and materially impact the lives of thousands of other people, Hobby Lobby is approximating a government far more than a person.

The broader point is that for most people, most of the time, the entity that "governs" their daily lives and conduct is not Congress, its their employer. Your boss largely decides how much you're paid, what benefits you are entitled to, when you can come and go, even what you must wear. There are differences, of course. A business relationship is contractual; I can leave for a new job. But then again, in the formal sense I can move to a new state or country. And in this economy, it is hardly a given that (practically speaking) people can willy-nilly move about jobs or countries. Ultimately, the ability to exit is somewhat more robust in the corporate context. But there are other areas where government has the advantage. I have many routes to influence my government, including voting, campaigning, writing letters, and protesting -- in fact, I have a right to submit grievances. There is typically no functional analogue in the corporate context, and many of the above options are a quick route to being canned for insubordination. Advantage: government.

In any event, the point is not to say whether government or corporations on net do or can deprive us of more liberty. Functionally speaking, most of us most of the time are subjected to corporate, not congressional, governance. That the company plays this role in our lives means people are -- justifiably -- going to mentally slot it in as a ruler rather than a peer when it starts making decisions that impact us. Fundamentally, it's a rejection of the libertarian conceit that economic relations are the free interaction of coequals. Rather, we're talking about what powers "government" -- defined functionally rather than formally -- has over individuals. And when the government tries to say "we're going to obstruct your access to contraception because we find it religiously immoral", people are going to have the same reaction as if an old-school government made the same decision.

4 comments:

But surely the fact that an employer is a corporation rather than a human doesn't determine whether that employer has control over one's life. When middle class people commonly had "help" (or what in countries with fewer pretensions to egalitarianism call "servants"), those employees had their lives controlled at least as tyranically as a corporation would, even though they were working for a single family. Their appearance, hours, method of work completion, even personal hygiene were commonly dictated by their human being employer.

I think the corporate form's relevance is whether it seems reasonable that the corporation's claimed rights clearly are just those of the people working for the corporation. This seems to be the case in the NYT's freedom of press rights, or the kosher butcher's freedom of religion. The attorney who defended Judith Miller from having to turn over her sources was hired by the NYT, but it clearly was Miller's rights that he was concerned with; Miller was the one who went to jail for contempt. The kosher butcher as an individual is who wants to work on the basis appointed by his religion. And this connects to the greater sympathy for actual religious employers, such as churches, getting exemptions; given what the Catholic Church does, it seems reasonable that it should not have to pay for employees' life choices that violate its doctrines. Indeed, churches are exempt by the Civil Rights Act of 1964 from the general prohibition on religious discrimination in employment.

In contrast, Hobby Lobby's and its employees' work has nothing to do with religion. That's why there's a lot less sympathy for its religious claims. People reasonably shop or work at Hobby Lobby without ever thinking of religion. So the assertion of a religious right seems to have come out of nowhere in a way that's untrue of the NYT's assertion of press freedom or the kosher butcher's of religious freedom.

Stevens:"Far from claiming any intent to express an idea that would be burdened by the presence of homosexuals, BSA's public posture--to the world and to the Scouts themselves-- remained what it had always been: one of tolerance, welcoming all classes of boys and young men. In this respect, BSA's claim is even weaker than those we have rejected in the past. ...

"It speaks volumes about the credibility of BSA's claim to a shared goal that homosexuality is incompatible with Scouting that since at least 1984 it had been aware of this issue--indeed, concerned enough to twice file amicus briefs before this Court--yet it did nothing in the intervening six years (or even in the years after Dale's explusion) to explain clearly and openly why the presence of homosexuals would affect its expressive activities, or to make the view of "morally straight" and "clean" taken in its 1991 and 1992 policies a part of the values actually instilled in Scouts through the Handbook, lessons, or otherwise. ...

"I am unaware of any previous instance in which our analysis of the scope of a constitutional right was determined by looking at what a litigant asserts in his or her brief and inquiring no further. It is even more astonishing in the First Amendment area, because, as the majority itself acknowledges, "we are obligated to independently review the factual record." Ante, at 6. It is an odd form of independent review that consists of deferring entirely to whatever a litigant claims. But the majority insists that our inquiry must be "limited," ante, at 7, because "it is not the role of the courts to reject a group's expressed values because they disagree with those values or find them internally inconsistent." ...

"But nothing in our cases calls for this Court to do any such thing. An organization can adopt the message of its choice, and it is not this Court's place to disagree with it. But we must inquire whether the group is, in fact, expressing a message (whatever it may be) and whether that message (if one is expressed) is significantly affected by a State's antidiscrimination law. More critically, that inquiry requires our independent analysis, rather than deference to a group's litigating posture. Reflection on the subject dictates that such an inquiry is required.

Surely there are instances in which an organization that truly aims to foster a belief at odds with the purposes of a State's antidiscrimination laws will have a First Amendment right to association that precludes forced compliance with those laws. But that right is not a freedom to discriminate at will, nor is it a right to maintain an exclusionary membership policy simply out of fear of what the public reaction would be if the group's membership were opened up. It is an implicit right designed to protect the enumerated rights of the First Amendment, not a license to act on any discriminatory impulse. To prevail in asserting a right of expressive association as a defense to a charge of violating an antidiscrimination law, the organization must at least show it has adopted and advocated an unequivocal position inconsistent with a position advocated or epitomized by the person whom the organization seeks to exclude. If this Court were to defer to whatever position an organization is prepared to assert in its briefs, there would be no way to mark the proper boundary between genuine exercises of the right to associate, on the one hand, and sham claims that are simply attempts to insulate nonexpressive private discrimination, on the other hand. Shielding a litigant's claim from judicial scrutiny would, in turn, render civil rights legislation a nullity, and turn this important constitutional right into a farce. Accordingly, the Court's prescription of total deference will not do. ...

Your post reminds me of Erwin Chemerinsky's article from 1985(!) arguing that state action doctrine is anachronistic and the assumptions underlying it make no sense. It struck me as correct then, and there are even more reasons to scrap the concept today and start over - specifically that corporations govern more aspects of our lives than ever.

(I've actually been thinking for a few years of writing an article that makes a similar argument with respect to speech/privacy and the necessity of using mediated/monitored spaces, but I'm not sure yet that it's different enough from what others have said on that point to be worth it.)

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